Friday, April 01, 2016

I imagine that many voters find judicial elections to be confusing.
Candidates seem to have but one message. They say that they will simply apply
the law and not engage in politics. They reject any suggestion that they will
inject their politics into judicial decision-making or be an “activist” judge.
In judicial elections, there are only little Scalias out there.

Yet voters notice that the political cognoscenti – the
ideological movers and shakers – seem to care an awful lot about who wins these
races. They typically see liberals and Democrats supporting one candidate while
conservatives and Republicans support another. Although no one seems willing to
admit it, it sure looks like something political is going on.

The answer lies in the past one hundred years of American
legal and political history. Early twentieth century Progressives – in many
ways the antecedents of today’s American left – came to be frustrated with our
Constitution. Our Founders mistrusted power and created a lattice of branches
of government and dual sovereigns in which each checked the authority of the
others. Power in the federal government was divided among the executive,
judiciary and legislature. The respective spheres of the state and federal
governments limited each other.

If your objective is limited government and individual
liberty, this is a pretty good framework. But if your goal is to use the state
to remake the world, it can be awfully frustrating. As early as 1908, Woodrow
Wilson called for a “Darwinian Constitution,” one that would not serve as
permanent legal framework for governing but that would “live” and “grow” and
“change” to accommodate the desires of the Progressives.

Put simply, the project of the American legal left became
two fold. One was to remove barriers to the authority of the state,
particularly the federal government. The other was to intervene where the
political branches had “failed” to “address” social problems in an acceptable
way. Thus, over the years, we have seen the authority of Washington and the
courts expand dramatically.

To accomplish these objectives, the legal left adopted a
number of interpretive methods and theories that would maximize the authority
of judges. For example, to simply apply the law as it is written – something
that lawyers today call “textualism” – was derided as simplistic. Better to
somehow discern a “spirit” that goes beyond the law’s mere words. Nor was it
necessary to interpret any ambiguity in the law to mean what the people who
enacted it thought it meant – what lawyers today call “origninalism.” If the
idea is to change the Constitution’s limits on state and federal authority or
to act where the legislature and executive has not, judges cannot be
constrained by the “dead hand of the past.”

Broad constitutional principles like equal protection and
due process became malleable and protean enough to justify substantial judicial
interventions in the political and governing process. Litigation became an
important tool for making policy.

Conservatives have criticized these developments as lacking
legitimacy. Judges, they have argued, should not be given the discretion to depart
from the plain or original meaning of constitutional or statutory text. While
courts have a duty to ensure that the government abides by constitutional
limitations – and even to strike down laws where necessary, the law’s text and
original meaning should limit them. To do anything else would turn judges into
legislators and subvert our constitutional separation of powers.

This is admittedly an oversimplified “op-ed” version of the
matter and an extended discussion would involve considerably more detail and
nuance. But it helps to understand why left progressives and Democrats, on the
one hand, and conservatives and Republicans on the other, seem to differ so
sharply on judicial elections. They have come, over the years, to have very
different views of the law and the judicial function.

We see this in the current race between Justice Rebecca
Bradley and Judge Joanne Kloppenburg. Bradley says that she is a jurist in the
mode of Antonin Scalia and will “apply the law as it is and not as I wish it to
be.” Given an opportunity to explain, she will elaborate on the themes that
I’ve briefly outlines.

Kloppenburg, on the other hand, compares herself to Justices
Ruth Bader Ginsburg and Sonia Sotomayor, jurists who have tended to have a more
expansive view of the authority of courts to clear the way for or, if
necessary, even implement the left progressive agenda.Kloppenburg, herself, has said that she
believes it is the role of judges to interpret the Constitution to create “a
more equal society.” Whatever that means and whether it is desirable or not,
such an objective is quite ambitious and is going to require an activist
judiciary. It goes beyond simply applying the law and necessarily means more
power for judges and the state and less for legislators and private citizens.
It means rule by lawyers.

Kloppenburg reinforces that message by mentioning Scott
Walker whenever she can. It is a dog whistle to the political left that says,
“I’m one of you.”

When seen in this way, the hotly contested nature of our
judicial elections is not an aberration or a disgrace. They are, with all their
imperfections, about something that matters.

About Me

I am President and General Counsel of the Wisconsin Institute for Law & Liberty and an adjunct professor of law at Marquette University Law School. The views expressed here are my own and not those of WILL or Marquette. They are offered in my personal capacity.